Defamation for dummies

April 1, 2009 – 6:43 pm

By Legal Eagle

In light of the recent publication of photos purportedly showing a semi-naked Pauline Hanson, we thought it was time to learn a thing or two about the law of defamation. The law of defamation not only has ramifications for newspapers, but also for blogs.

Main Entry: de·fa·ma·tion
Pronunciation: “de-f&-‘mA-sh&n
Function: noun1: communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person.

Defamation is a tort (ie, a legal wrong). A publication will be defamatory if it tends to injure reputation by:

disparaging a person;

causing others to shun or avoid a person; or

subjecting a person to hatred, ridicule and contempt.

If an individual is defamed, then he or she has a right to damages for the injury to reputation, as the purpose of the tort is to vindicate and protect reputation. Courts do not only look at the literal meaning of a defamatory publication, but also consider what the ordinary reader or viewer could have understood the publication to mean. This may be different from what was intended by the plaintiff or what was understood by the defendant.

Australia has enacted Uniform Defamation Laws (for example, the Defamation Act 2005 (Vic) in LE’s home State of Victoria).

If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.

On the other hand, a statement will not be defamatory merely because it is hurtful or upsetting to a person. It must affect their reputation in a damaging way.

Photos (such as those in the Hanson case) may constitute defamatory publications. Lawyers for Ms Hanson would argue that the publication of photographs which purportedly portrayed her in the nude subjected her to ridicule. There are parallels with the Andrew Ettingshausen case. Ettingshausen, a famed rugby league player, successfully sued GQ Magazine after it published a nude photo of him without first seeking his consent. At trial, he was awarded $350,000 in damages, but damages were reduced to $100,000 on appeal (see Australian Consolidated Press Limited v Ettingshausen (unreported, New South Wales Court of Appeal, 13 October 1993, Gleeson CJ, Kirby P and Clarke JA. Nor does a person necessarily have to be famous to succeed in an action for defamation. In Shepherd v Walsh[2001] QSC 358, Sonia Shepherd successfully sued the publishers of a magazine called The Picture, after it published a nude picture of her. While the picture was of Ms Shepherd, she did not consent to its publication, and it was in fact sent in by her ex-boyfriend and his new girlfriend in revenge. (If you are interested in reading more on these cases, see David Rolph’s excellent article comparing these two cases — hat tip to Pete Black).

The Ettingshausen case suggests that even if the photos were shown to be of Ms Hanson, she may be able to recover damages for defamation. If they are not of Ms Hanson (or they are a Photoshop concoction), the newspapers will still be liable, as it does not matter if they published in error, or if they believed the photos were real.

Liability extends to all involved in the defamatory publication, including the writers, publishers and editors. Everyone involved in the publication is potentially liable. Liability can even extend to a situation where a rumour or comment made by somebody else is repeated. Nor does the intention of the publisher matter.

If the defamer works for a media organisation, the media organisation will be liable for the defamation too. This arrangement is typical, and known as vicarious liability — employers, in many circumstances, are liable for their employees’ torts. That said, the tort must be carried in the course of employment. For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode — though an improper one — of performing it. Courts sometime distinguish between an employee’s ‘detour’ or ‘frolic’. For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer’s business is undertaking a ‘frolic’ and will not subject the employer to liability. This scenario has particular force when the law is dealing with, say, a blogger who both works for a given media outlet (and has a named and hosted blog) and also freelances on their own account.

Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. (emphasis added)

The three main defences are:

fair comment

justification/truth

qualified privilege

‘Fair comment’ is available when the publication is a comment (rather than a statement of fact). The comment must be:

based on facts (which must be stated or sufficiently identified);

relate to a matter of public interest; and

an honest expression of the commentator’s view.

This is backed up by the statutory defence of ‘honest opinion’ (see eg, s 31, Defamation Act 2005 (Vic)), which is in similar terms.

In Australia, there is also a defence of ‘justification’, which applies if the defendant can prove the allegations are ‘substantially true’ (see eg, s 20 of the Defamation Act 2005 (Vic)). This can be compared to UK defamation law, where the defamatory statement is presumed to be false, unless the defendant can prove its truth. Presumably the UK laws are stricter because of the way in which the English tabloids (aka ‘Red Tops‘) operate.

‘Qualified privilege’ applies when there is a legal, social or moral interest or a duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. This is what protects job referees, for example.

Some of these concerns apply with particular force to blogging, especially as it gets more popular. An important issue of which bloggers should be aware is malice. The Uniform Defamation laws expressly retain the common law rules in relation to malice (see eg, s 24(2), Defamation Act 2005 (Vic)). ‘Malice’ means ill will or spite towards the person defamed, resulting in publication for an improper purpose, or without an honest belief in the truth of the publication. If a defamatory publication is found to be malicious, then the defendant will not be able to claim the defences of fair comment or qualified privilege. A malicious publication may give rise to aggravated damages (ie, increased damages because of the damage to reputation and personal hurt). Conversely, an absence of malice may be an argument for mitigation of damages.

It’s not true to say that blogs can report without fear or favour, nor is it true to say that bloggers have no duty to those they do comment on. Bloggers have to be damn carefulwhen they make allegations which may injure someone’s reputation (particularly their professional reputation) or cause others to avoid associating with that person.

Before you start speculating about the actions of a person in a way that may affect their career or reputation, you should contact someone to check your facts. Failure to even attempt to make contact with the subject of an allegation suggests malice, because the inference is that you do not have an honest belief in the truth of your publication.

Of course it is possible to speculate (like the English tabloids do), and if what you say is true, then the subject of the slur probably won’t fight too hard. But if you’re wrong, you will have to pay damages because you’ve undermined any defence you may have. That’s the way the tabloids play the game. Typically, they have big pots of money set aside to cover costs when the speculation turns out to be wrong. So if you’re going to speculate, make damn sure you’re right, and be prepared to wear the consequences if you’re not. Remember, too, that the law protects people equally: just because many people find Pauline Hanson’s politics obnoxious doesn’t mean she doesn’t enjoy the same rights at law as someone with different (or more moderate) views. This is an important aspect of the rule of law (‘treat like cases alike’, where the word ‘like’ refers to legally significant facts).

You don’t even have to be a blogger to be held liable for defamation. Marcellous has two great posts on people held liable for defamation in the context of a domestic dispute and another case involving a dispute between two sets of parents which entangled the children as well. These cases may seem extreme (as Marcellous points out), but they also show the law’s attempt to deal with damage caused by spiteful allegations and gossip. In some respects, they hark back to an earlier time — when your mother told you that ‘if you can’t say anything nice, don’t say anything at all’ — and expected you to take the principle behind her comment seriously.

In blogging, there may be situations where bloggers use personal information in order to ‘get at’ political opponents, but does not necessarily amount to defamation. Some use of personal information by other bloggers — while discourteous and mean-spirited — has no legal significance. This is simply because so many people publish vast amounts of information about themselves online. When they do so, they often fail to appreciate the internet’s ‘publicness’. Details about one’s relationships, where one lives, what one thinks of various public figures — all of this is the internet’s stock-in-trade. However, it is also perfectly possible for a political opponent to collate that information and use it as the substance of a nasty post. The key — if one is involved in heavy-duty political shitfightery — is not to make this sort of information available in the first place.

In our view, much of this vulnerability has come about because people have engaged in deeply personalised writing, inspired by the likes of Hunter S. Thompson. Unsurprisingly, those made the subject of attacks based on what they say online about themselves want the same sort of vulnerability in their opponents, and seek to make use of any information they may obtain accordingly. This is important to bear in mind, as is the fact that many people seem to be unable to perceive the difference between making use of publicly available information and going on what lawyers call ‘a fishing expedition’.

Hunter S. Thompson made ‘gonzo journalism’ popular — a personalised, emotional journalism which may have elements of sarcasm, humor, exaggeration and downright rudeness. However, doing what Thompson does requires an enormous amount of literary skill — as one veteran editor of our acquaintance put it, ‘you are the only person interested in your story’. Most of the time, the only information published by Thompson’s lesser imitators is exactly the sort of stuff that comes in handy during an inter-blog shit fight. Our advice? Put away thy Thompson, take out thy Orwell. George Orwell often wrote coruscating attacks on political and literary opponents during his lengthy career as a journalist and critic, but he was sparing when it came to inserting himself into the narrative. Perhaps intuitively, he knew that people were not interested in his story, but were interested in the subjects about which he wrote.

Why, you may ask, are two lawyers — one of whom is a libertarian — defending the tort of defamation, when its chilling effect on free speech is well documented? In short, we’re not defending it, at least not in its entirety. The simple fact is that this is how the law currently stands. One of us has made arguments to the effect that there are better ways to manage public untruthfulness and media irresponsibility than defamation, but for now, we’re stuck with defamation. It’s also wise to remember — especially with the old, common law torts — that they evolved over many centuries and have an important social function. For whatever reason — while people have valued their speech rights in the broadest sense since Magna Carta and the Glorious Revolution — they’ve also valued truthful speech, speech untrammelled by malice. Where the former has been threatened by the latter and vice-versa, a great mass of compromises have been hammered out. This is symbolised by the current dispute in the UK over poor litigants defamed in the Red Tops using ‘no-win, no fee’ arrangements to get at their tormenters.

The basic rules are as follows:

1. If you publish something unconfirmed, and it’s wrong, be prepared to take a hit.

2. If in doubt, take it out.

3. Make personal information available online at your peril.

4. If someone refuses to confirm or deny your speculation when you do contact them, it is in your interest not to publish anything unless you have very deep pockets.

It really is worth knowing a little bit more about the law of defamation if you are involved in political blogging. And maybe some of the media outlets involved in the Hanson photo debacle should take a refresher course too…

[Your friendly neighbourhood legal beagles, SL & LE]

Update by LE:

As Tim Macknay as pointed out in comments below, bloggers should be aware that they can still be sued even if the material is published on an overseas server. In the Joe Gutnick defamation case, the defamatory material was published on a server in the US by a US company, but Gutnick was able to sue in Victoria because the damage to his reputation occurred in Victoria.

Also, it seems Australia is not the only place where nude pictures of politicians have been appearing in public. Via Cearta.ie, I became aware that the issue has also surfaced in Ireland, albeit in a rather different way. Apparently a “guerrilla artist” sneaked into the National Gallery of Ireland and the Royal Hibernian Academy and hung some rather unflattering nude portraits of Brian Cowen, the Taoiseach (Prime Minister) on the walls. The whole thing has been dubbed “Cowengate”. As Eoin explains:

Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, they story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland.

Eoin recommended this post by Sentence First on the issue – I’d have to agree that it’s an excellent post.

36 Comments

However, it is also perfectly possible for a political opponent to collate that information and use it as the substance of a nasty post.

Something like this happened to me during the 2007 election. The ALP circulated a nasty press release based on things I’d wrote and accused me of being a ‘front’ candidate for the CLP (I was standing for the LDP).

I wasn’t honestly surprised when it went about and was slightly flattered somebody had taken the time to drop my name into the Google search form. Most of the press release was, loosely speaking and allowing for spin, correct. But the implication that I was a ‘front’ candidate was not. The ALP never responded to my demand to retract the claim and neither did their pet columnist at The Northern Territory News.

It’s not as though I could do anything. At the time Ken Parish told me that even if I could sue, it would cost too much, take too long and achieve very little.

I’d like to suggest an addition – one other thing Australian bloggers ought to keep in mind is that publishing from a server located overseas is no shield from defamation proceedings in Australia – a la Dow Jones v Gutnick (2002) 210 CLR 575.

FXH, a right of reply might mitigate the damage caused by a defamatory statement, and make it less likely to be malicious, but it doesn’t provide a defence.

Say a blogger makes an allegation that Mr X is a thief. Mr X enters a comment saying, “No I’m not a thief”. Of course, he would say that, wouldn’t he – so it’s not likely to lessen the damage in the eyes of a reasonable member of the public who came across the post.

The good thing about comments is that it can quickly alert you to the fact that a post is potentially problematic in the first place.

Thanks so much for this. What a truly excellent act of public service. It’s sad that the bloggers most likely to benefit from or need it will be the ones least likely to read it, but the rest of us are grateful.

As I hazily recall, in the Gutnick decision, and similar UK decisions, the Courts have found that on-line material is effectively published where it is read and the question of harm to reputation goes to damages rather than liability.

I think there is a fundamental misconception by Courts as to the way things are “published” on-line – unlike a physical newspaper, for example, one cannot really control where something posted on-line is read. This creates the perhaps undesirable situation that you could be subject to the combined set of all of the world’s defamation laws in respect of everything you publish. I would prefer to see the Courts take into account the nature of the publication – i.e. if I post something on an American website mostly read by Americans, perhaps there should be some higher hurdle before an Australian in Australia can sue me for defamation. One option would be to require actual proof of publication in every instance thereof, i.e. require the plaintiff to prove that the article was read by X number of Australians, so that a realistic estimate of the harm occasioned can be made.

Just another reason we need an actual right to free speech in this country…

The idea of being compensated for damaged reputation seems perverse. If I think less of you today than I did yesterday it is not as if something that was yours has been taken from you. My opinion, even if it is my opinion about you, is not your property.

Putting the onus of proof on the defendant (ie prove that your remarks are true or you’re guilty) is also perverse.

Re: TerjeP comments. I cannot imagine why you seem to hold the belief that a person’s reputation is of little consequence.
Let’s say someone was to spread a rumour about you – say accusations of paedophilia or professional misconduct and that rumour was both widely circulated and taken for true regardless of evidence for or against? Do you think such a situation will NOT have ramifications for every aspect of your life? I’d bet my last dollar that your tune would quickly change

Indeed. And much as I dislike celebrity culture, there is a perfect example of someone whose whole livelihood is entirely reliant on their reputation.

Similarly, what about a Doctor who is alleged to have sexually assaulted a patient? A lawyer who is alleged to have stolen from a client? A child care worker who is subject to insinuations that they are into kiddy porn? Etc etc etc etc etc

I did not say there were not consequences. Lots of things have consequences which we may not like but they don’t always entitle us to compensation. For instance if I was a banker then a lot of the current media might make people think less of me because I was a banker even if I had done nothing wrong. That does not create a case for compensation because people ought to be allowed to feel baddly towards a given profession. We don’t own other peoples opinion about us even if that opinion has positive (or negative) consequences. And what we don’t own can not be taken from us.

I dunno, Terje. Businesses own their goodwill — it’s a big part of the sale price when it comes to any going concern. I’ve always seen reputation as the individual version of a company’s goodwill, and vulnerable to the same sort of attacks.

Have a poke around the intertubes and read what a whole bunch of very unpleasant rumours (mainly that members of the board were Satanists) did to Proctor and Gamble a few years ago — nearly sank the company, precisely because it hacked into P & G’s goodwill.

Ah the Ettinghausen case, where Tom Hughes put to the editor that it was his willy, the editor said something like ‘I don’t know’, and Hughes retorted: ‘What else could it be, a rubber ducky?’

That decision was wrong at law in my view. Not that he shouldn’t have a remedy, but that it wasn’t defaming his character. Humiliation and defamation are actually not quite the same things, and a remedy based in privacy or similar would be better used.

Lawyers, I put it to you that there is a crucial, ratio-level dsitinction between that and Pauline’s photos:

* Ettinghausen’s pics implied nothing more than that he has a pen*s and takes showers.

* Pauline’s pics carry the direct imputation that she:
– is willing to strip off for photos
– did in fact strip off for photos
– condones stripping off for photos.

As for the law itself, it is an ass designed to protect the powerful and has long needed supercession.

It’s a distinct issue from the legal tests per se, but frankly unless they betrayed the state’s secrets or committed a heinous violent crime I’d tend to let any politician off, even one as awful as her, for stuff they did more than about 10 years ago.

Armagny, have a scan of the Rolphe article if you have a mo’ – it argues that the important thing in the Ettingshausen case (as opposed to a case involving just you or I) is the fact he is/was a celebrity. Rolphe argues reputation is an economic and social construct, but can also be recognized as a media construct – reputation as celebrity.

I suspect Ettingshausen did well because the magazine took such a disingenous approach to the matter – trying to argue that genitalia weren’t visible, and that it wasn’t making lewd inferences in the accompanying caption.

Still, apparently Ettingshausen was ridiculed a bit for his decision to sue — perhaps he’d have been better off ignoring it. If he hadn’t sued, I’m pretty sure I would never have heard about the photo in the first place, and I wouldn’t have still remembered the incident some 15 years later.

Re posing for photos – not my cup of tea when I was young and svelte, not my cup of tea now! Perhaps I’m just old-fashioned. I don’t particularly mind if it’s someone else’s cup of tea – if it had been a young Pauline, so what?

Nonetheless, I think one has to be very careful if one’s taste runs to having such photos floating about – see this post about a lost mobile phone.

Skeptic – A house may sell for more simply because it has close proximity to a railway station and there is a nice public pool not far away. However if the railway station is relocated or the public pool closes down the owner of the house is not compensated. Likewise a business may sell for a higher price due to goodwill however any number of things may change that goodwill without any compensation being due. A freeway may cause traffic to bypass the town. A influencial newspaper may publish an article saying that donuts are uncool. A neighbouring shop that attracts complementary traffic may relocate. A rumour might spread that there are lots of criminals and beggers in the suburb.

The fact that people trade on their public image and reputation is not the same as saying that they own that image or reputation. What I think of you isn’t your property. So any decline in my opinion of you isn’t something you should be compensated for.

TP, with respect I find that argument somewhat akin to saying ‘we all die, so what difference between a heart attack and a bullet in the head’.

Or to go to your examples:If the house lost value because someone burnt it down, would this not attract a different view from a law of wrongs?

Or even better, your doughnut analogy; what if the paper, because the editor once got in an argument with the owner of the dougnut shop, published a malicious article stating that its wares benefitted from the liberal inclusion of faeces?

Do understand I’m not a fan of defamation as constituted at common law. It is possibly the single greatest instrument of abuse by the powers that be in Singapore. But with some adjustments it would be an appropriate source of remedy at law.

Cheers for that WB… amazing that the US has such media-friendly defo law, yet their media is far more respectful of people who take on the mantle of public office (on the whole). I don’t think they run to ‘Red Tops’ — although that said, they do have the National Enquirer ‘help, an alien ate my baby!’

Hey SL, slight segue, but tonight’s Four Corners was excellent (!) all about school bullying and cyber bullying particularly. Seems to me it might be real necessary to get the word out about new technology and how it can be utterly damaging to people, not just bullying using Instant Messenger and Facebook which is dreadful for the bullied, but also terrible for the idiot perpetrators who’s history of perfidy is traceable and that stain can follow them for ever.
While news folks are busy extolling the virtues of new media (there was a conference last week banging on about the delights of twitter etc) a bit of legal education seems to me to be sorely needed to explain basics like defam as you guys have done here (cheers again – good stuff). Typing out some hurtful blather is just appalling. If you wouldn’t do it to their face, you shouldn’t do it about someone online. Just lately I’ve discovered quite a lot of bilefilled tappers here in Oz and I honestly don’t think they have a clue what they’re actually doing, how hurtful it can be and how liable they are publicly showing themselves to be.
In the 4Corners show, one poor girl at a school found a Facebook site set up to slag her off cos of race and doubtless other meangirl attacks – every contributor now knowable. What a stupid way to behave, to give your own reputation a complete recsting so that now you’re known as a cyberbully – before you’ve even started living in the real world as an adult they’ve wrecked their own credentials. I am not at all sure they’ll ever be able to make amends, other than to take it all down and publish very clear mea culpas to try to wipe the stain away. Just awful.

WB, very interesting – wish I’d watched it. I think people forget how very public the Internet is. I read a case the other day of an American cop whose testimony was thrown into doubt because of MySpace status updates – there his various moods and thoughts were, recorded for all to see.

Good grief, LE – MySpace updates upsetting evidence? I guess it’s a fair enough source, after all – the authors are typing it all up themselves. See, I don’t play in that pond. I’d rather just blog (altho’ I am very very slack about that lately). I suspect the whole thing with MySpace and twitter et al is the constant need to update and contribute. You’ll end up saying something inappropriate through sheer weight of pressure to jump in cos nature abhors a vacuum, or something like that.

Be careful how you set your mood on MySpace, your status on Facebook and never post dumb comments on video sites because it all can and will be used against you in a court of law.

That at least is the experience of New York police officer and amateur body builder Vaughan Ettienne who has been out-manoeuvred by a canny legal aid lawyer.

Using evidence drawn from the policeman’s online social networking activities, Adrian Lesher of the Legal Aid Society cast enough doubt on the policeman’s character to have a jury dismiss a serious charge against his client, Gary Waters.

It’s a question of relevance I suppose, and of judges doing their job and not letting in meaningless slanders to diminish the witness. In that case, his propensity to hitting accused was at issue, so the fact that he said:
“If he wanted to tune him up some, he should have delayed cuffing him … If you were going to hit a cuffed suspect, at least get your money’s worth ’cause now he’s going to get disciplined for a faggot-ass love tap.”
online is probably not irrelevant.

Kind of like a judge saying “if he was willing to take a bag of money to swing the judgement, he should have gone about it this way….”

The law in this area in Australia seems complex and lacking in clarity, involving overlapping causes of action depending on the facts and circumstances.

Lara Bingle brought an action for passing off, breach of the Trade Practices Act in Bingle v Emap in addition to breach of copyright and defamation. The defamation claim rested on the allegation that as a woman her consenting to pose topless for a smutty men’s magazine Zoo Weekly, was capable of causing right-thinking members of the community to think less of her. There were issues concerning the admissibility of extrinsic evidence but interestingly the definition of “smutty” was explored by the parties and the Court. (whether vulgar could be equated with obscenity or merely indecency or strong connotations of indecency) Obscenity is another one of those vague words which has given rise to a lot of litigation.

From what I read somewhere there was some doubt about Bingle using the Ettinghausen case as a precedent. for suing Fevola. The author suggested that the judgement was a shaky precedent not just because of it’s interlocutory nature.

Further to that she would have had to have demonstrated that the photos caused people to think less of her, shun or avoid her or expose her to ridicule.

Even if she could have establisheed that the photos carried a defamatory meaning, there could still be an argument as to whether the defendant might have been able to successfully pleaded the defence of justification, namely that the defamatory imputation of nudity was true.

In an online group an administrator deleted me from the group for a frivilous reason. I mention it on my Facebook page. I contacted the organiser of the group who supported me and re-instated me in the group. On my timeline I said that I had a good outcome and I would not allow myself to be bullied. Now she is suing me for libel for “calling her a bully”‘. Can she do this.

I have been reading on the Internet about defamation law in Australia and I have stumbled upon this article. I have to say I like that it is comprehensive in elborating on defamation in general. I also found a website of lawyers http://www.protectyourreputation.com.au/overview offering legal services in cases of defamation. I think that it is important to understand how a defendant might defend against such charges.

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